As an attorney and real estate broker, I am often asked about fencing issues that arise between neighbors. Who pays for the repair of a shared, deteriorated fence? What if one party wants to install a fence, and the adjoining neighbor does not? What if two neighbors disagree about what type of fence to install?

As a general rule, adjoining landowners are equally responsible for maintaining the “boundaries and monuments” between them, including fences. Under California law (which can be found in California Code §841), a landowner building or repairing a fence may hold a neighbor responsible for their share of the cost, insofar as it is just. Whether shared responsibility is “just” is something the court may ultimately have to decide, as set forth below.

THE PROCESS

California law regarding the shared responsibility of fences includes a specific process that neighbors must adhere to in order to benefit from the law of shared responsibility. Assuming neighbors cannot come to an agreement on their own about whether or how to repair or install a fence, this is the legal process that would ensue.

Step 1: Written Notice to the Affected Neighbors

A neighbor who wants to build or repair a fence must give 30 days’ prior written notice to each of the affected neighbors (aka neighbors that share the fence line). The notice must include 6 specific things:

1.    A notification of the presumption of equal responsibility. For example, the neighbor could write, “California law presumes equal responsibility for the reasonable costs of construction, maintenance, or necessary replacement of the fence.” (See California Code §841);

2.    A description of the nature of the problem facing the shared fence;

3.    The proposed solution for addressing the problem;

4.    The estimated construction or maintenance costs involved in addressing the problem;

5.    The proposed cost-sharing approach; and

6.    The proposed time line for getting the problem addressed.

If any of these 6 specific things is missing from the notice, the notice may be deemed defective.

Step 2: The Affected Neighbors Agree or Disagree

After the notice is given, the affected neighbors may agree or disagree to the proposal. If the neighbors agree to the proposal, it is important to have them sign something in writing stating that they agree to the proposal and the cost-sharing approach outlined. If the neighbors do not agree to the terms, the neighbor who wants to build or repair the fence can move forward with the fence and bring a claim against the neighbors in small claims court for the amount the affected neighbors should be responsible for.

Step 3: The Court Determines Whether Shared Responsibility Should be Upheld

The law presumes shared responsibility, but this presumption may be overcome in court if the evidence shows that shared responsibility would be unjust. In determining whether shared responsibility is just or unjust, the court will consider the following factors:

1.    Whether the financial burden to the landowner is substantially disproportionate to the benefit conferred upon that landowner by the fence in question;

2.    Whether the cost of the fence would exceed the difference in the value of the real property before and after its installation;

3.    Whether the financial burden to one landowner would impose an undue financial hardship given that party’s financial circumstances as demonstrated by reasonable proof;

4.    The reasonableness of a particular construction or maintenance project, including a) the extent to which the costs of the project appear to be unnecessary or excessive, and b) the extent to which the costs of the project appear to be the result of the landowner’s personal aesthetic, architectural, or other preferences; and

5.    Any other equitable factors appropriate under the circumstances.

After considering these factors, the court may uphold shared responsibility or decide that shared responsibility would be unjust. If the court decides that shared responsibility is unjust, it may order the affected neighbor to make less than an equal contribution toward the fence, or even no contribution at all.

THE TAKEAWAY

If you are looking to make a change to your fencing, the first thing you should do is make friends with your neighbors. “You can catch more flies with honey than with vinegar,” and it is far better to try to work out an agreement with your neighbors in advance rather than duke it out in court later. This goes for if you are considering buying a property that needs fence work as well. If you know a property needs fence work, talk to the neighbors in advance of buying the property. You can even draw up a binding agreement with them before you buy the house!

But if you cannot come to an agreement with your neighbors, and you are willing to go to small claims court to force your neighbors to contribute their fair share, this is my advice:

·      Make sure the fence changes will benefit your neighbors and their property. If the fence changes you wish to make will harm your neighbors’ property or property value, you could actually end up owing money to your neighbors. So this is very important. If your neighbors disagree with your proposal because they are claiming it will damage their property or hurt their property value, I recommend consulting with an attorney and/or real estate professional to make sure this is not the case.

·      Make sure the fence changes you are seeking will increase property value for both you and your neighbor.  Ideally the changes would actually pay for themselves in this increased property value.

·      Make sure your neighbors are not suffering from financial hardship that would prevent them from being able to contribute. If it goes to court and your neighbors present evidence of financial hardship and the inability to contribute, the court may enforce less than equal responsibility. The court may even let them off the hook completely. Usually courts require fairly vigorous evidence of financial hardship, so this is not something your neighbors will be able to “make up” and sell to the judge without solid evidence.

·      Make sure you obtain multiple cost estimates for the work you wish to perform, and go with the lowest one. Then save the others to show the court later.

·      If your desired fence design is needlessly ornate or unnecessarily expensive because of your personal tastes, know that the court will likely not force your neighbors to reimburse you for “extras” on the fence that aren’t necessary. If your neighbors make this argument, the court may reduce the amount your neighbors are forced to contribute.

·      Make sure you issue a proper 30 day written notice to the affected neighbors, as set forth above, before proceeding with the fence work.

Fences can be costly. If you are on either side of an ugly fence issue, and are not sure what your rights are, contact a local attorney for assistance.

This article contains general legal information and should not be construed to form an attorney-client relationship or contain specific legal advice. For legal advice specific to your circumstances, please contact a local attorney.

Copyright © 2019 Law Offices of Christine Miller